How Fair is the Fair Sentencing Act? Implications of Dorsey v. United States

In the 1980’s the inner cities of America experienced what many are taught as the “crack epidemic”. During this time – the nation responded with fear – not knowing what crack was – or that it was literally was cocaine but in a different form. Many stigma’s started to surround the use of crack cocaine, and as the epidemic got larger – the government responded with the ‘War on Drugs’. This has become a very controversial area of discussion. A lot of critics of the war on drugs believe that this government response was targeted towards minorities while the supporters claim it reduced crime. The “War on Drugs” was pushed under the Reagan Administration where many pieces of legislature were pushed through Congress to create zero-tolerance policies regarding drug usage/possession. The most controversial laws passed during this time was the mandatory sentencing laws in regards to crack-cocaine usage. If you were caught with 5 grams of crack cocaine – even if you were a non-violent, first-time offender, you were automatically given a mandatory minimum sentence of 5 years…compared to having 500 grams of cocaine which would trigger a 5 year sentence..

These new laws created a disparity in sentencing. Nonviolent drug law offenses increased from 50,000 in 1980 to 400,000 in 1997. Thousands of people were sent to jail – with mandatory minimum sentences of 5 years+ for having a small amount of crack cocaine although it turned out crack cocaine was the same drug as cocaine. 79% of 5,669 crack cocaine offenders in 2009 were African American. There was an obvious disparity in how the sentencing was directly impacting the African American population. Many people discussed the disparity and it became a very controversial topic since these laws where unfair compared to cocaine sentences which did not impact African Americans in the same sense – although they were technically the same drug.

Recently, these unfair sentencing laws were addressed by the same people who created them – Congress. In 2009, Senator Richard Durbin introduced the Fair Sentencing Act to Congress. The goal of this legislation was to reverse the unfair sentencing laws that affected thousands by reducing the disparity in sentencing from a 100:1 to 18:1 ratio and ended mandatory minimum sentencing in certain situations. This legislature was considered bipartisan and passed through Congress quickly and became law on August 3rd, 2010. Although this legislature, in my opinion was a move in the right direction, there was a gap in the law and confusion of who it applied to. There was a population of people who committed drug offenses prior to the Fair Sentencing Act but were not sentenced until after it’s passage. It was unsure if this legislation applied to their sentencing since it was not specified in the law itself. Due to this, the Supreme Court case Dorsey v. United States unfolded….

In 2008, Edward Dorsey was convicted on selling 5.5 grams of crack cocaine. As a prior offender, his minimum sentence under prior laws would be 10 years. Although the crime happened in 2008, Edward did not receive his sentence until after the passage of the Fair Sentencing Act in 2010. The judge on his case determined that since the crime happened prior to the passage of the Fair Sentencing Act that his sentencing would be determined by prior laws which meant he would get a minimum sentence of 10 years. Edward challenged this sentence which ultimately ended up in the Supreme Court.

The Supreme Court ruled in favor of Dorsey in a 5-4 decision. The majority court’s opinion was the intention of the Fair Sentencing Act was to restore fairness in sentencing and the only way to do this was to right-the-wrongs of past offenders. They believed this legislation applied to Pre-Act offenders which would change the sentences of thousands across America. If lower courts followed prior laws – they would continue to create disparities that Congress clearly intended to reduce and eventually end. Due to this, the court ruled in favor of Dorsey to make sure the disparities in sentencing would eventually end. Justice Antonin Scalia dissented followed by the other 3 justices writing that Congress did not imply that this law would specifically apply to offenders prior to the implementation of the new law and due to this – they wanted to follow standard protocal which states that the repeal of any statue does not imply that previous people affected by those laws will automatically get the benefits from a new law unless it is specified by Congress.

So what are the implications for social workers and why should we care?

Going back to the Fair Sentencing Act of 2010, under this new law, the ratio for sentencing comparing crack cocaine to cocaine went from 100:1 to 18:1 which means the disparity between the substances is NOT OVER. Thinking about how the substances are the same chemical – it is disturbing to think that crack cocaine still activates sentencing for having lower amounts compared to powder cocaine. It is a social justice issue, which is a core value in the social work profession. Crack cocaine offenders are more likely to be African American which means even though we made progress, these laws are still directly impacting the African American population. If we want to fulfill full equality, drug possession sentencing should be the same for crack cocaine and powder cocaine. This was a step in the right direction. Many people will have a chance to get re-sentenced and future generations will not face the same crucial penalties as they did in the past. It is important to recognize that there is still room for improvement and although we have advanced in our laws, social workers should still advocate on behalf of people affected by drug sentencing, in general. It is also important to note that this legislation was mainly directed towards the crack cocaine disparity. There are still many other laws implemented, that need to be revisited and probably rewritten to address the growing prison population in America.

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8 thoughts on “How Fair is the Fair Sentencing Act? Implications of Dorsey v. United States”

Thanks for a great post! It’s a relief that the Supreme Court ruled in favor of Dorsey, though it was not made in overwhelming agreement. I really appreciated your reflections on the social work profession and the fact that disparities still exist despite the Fair Sentencing Act–just goes to show how much work there is to be done in so many areas!

This is a great post! I loved how you clearly explained the history of all the different laws surrounding drug offenses, and who these laws have affected over the years. And I also appreciate how you tied the disparities in drug offenses back to social work. While it’s important to recognize all of the work that has been done, including the Fair Sentencing Act, it is important for us as social workers to recognize that disparities still exist and laws that are in place for drug offenses have a disproportionate impact on people of color. While I recognize the good intentions behind the “War on Drugs,” it seems as if the so-called War was meant, in part, to imprison large amounts of minority populations. I guess we will never know exactly the true intentions behind lawmakers at the time, but it is important for us as social workers to continue to fight for minority populations who are impacted by such unfair laws, and fight for policy reform.

On a similar note, I also wonder how the recent opioid epidemic will affect drug laws, especially as recent news has reported that President Trump may declare a state of emergency over the opioid crisis.

I’m glad you brought attention to this issue! I remember learning about this when I was still studying PoliSci and even then it bothered me how blatantly discriminatory this was. And on top of that, crack cocaine was the cheaper variant, the version that poorer minorities, typically African-Americans used. But yet, say a wealthy white male got caught with a smaller amount of cocaine… Ridiculous. I also really liked how you didn’t settle and brought to attention how the issue is still not over. Great read.

This post was amazing. You did a great job and breaking the case down and giving the reader the ability to learn more and follow up with other information. After reading the way sentencing and arrest works, I think something needs to change in terms of how we determine to sentencing and place it on an individualistic manner. This was amazing and thank you for giving this information.

As others have already commented, really nice job on this post. It is well researched and written, and you lay the issue out very clearly. I agree that the disparity in how drug offenses are prosecuted is a major problem, and am glad the Court ruled in favor of Dorsey in this case as well.

One question I have is why did Se. Durbin and the Fair Sentencing Act legislature authors/supporters settle on the 18:1 crack to powder cocaine disparity ratio? It seems like an arbitrary number, but surely there was a reason they settled on 18:1? Overall, I think the disparity is still unjust, but I was just curious.

Thanks for sharing this! I agree that different sentences for the essentially the same crime is a problem. I also think that addressing the underlying problems that drive people to selling and or using drugs needs to be addressed. We can’t just be ok with fair sentencing we have to look at why crack, cocaine, or opioids are even become an option in a person’s life.

Ashely, thank you for the links. I often hear our clients reference the crack epidemic when discussing larger societal implications associated with the opioid epidemic. Coming from a suburban household, I agree that social capital has a positive correlation with affluence. I honestly know more about opioids than crack as consequence, I believe.